The New McCarthyism: Depriving Constitutional Rights Based on Mere Suspicion

IB-2005-BJune 2005

The civil libertarians who warned about a New McCarthyism in the United States turned out to be right. As in the early 1950s, politicians—abetted by an uncritical press—are
using national security as a pretext to take away constitutional rights. Like
the Old McCarthyism, the New McCarthyism wants constitutional rights
eliminated without due process, based on mere suspicion. Like the Old
McCarthyism, the New McCarthyism’s leading advocate happens to be a
Congressperson named McCarthy.

Rep. Carolyn McCarthy (D-N.Y.) has introduced legislation, H.R. 1195 to ban
persons on the “No Fly List” from buying firearms. The McCarthy bill was
announced shortly after the release of a Government Accountability Office
(GAO) report which detailed some deficiencies involving federal background
checks on gun buyers.1 (Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background
Check Involving Terrorist Watch List Records, GAO-05-127, Jan. 2005). The GAO
report also proposed some specific solutions, although the McCarthyite gun ban
proposal was not among them.

The GAO report had been produced at the request of Senators Frank Lautenberg (D-N.J.) and Joseph Biden (D-Del.), who have announced plans to introduce a narrower bill of their own.

To understand the issue it is necessary to understand some technical details about the operation of federal background checks for gun buyers.

The National Instant Check System

The only consumer product which a person needs FBI permission to purchase, for every single transaction, is a firearm. Ever since the 1998 sunset of the Brady waiting period, all retail firearms transactions in the United States must be approved by the National Instant Check System (NICS). When a woman goes to a gun store, the dealer takes her identifying information, and calls the FBI. The
FBI checks its records, and if she passes the background check, she can buy a gun. If she comes back to the store the next day to buy another gun, she must pass another background check.

In many states, the background checks are run by a state or local police
agency, which accesses the FBI records

To operate NICS, the FBI compiles “prohibited persons” lists for persons who are
prohibited by federal law from possessing a gun. Categories on the list include
felony convictions (any conviction, no matter how long ago), misdemeanor
domestic violence convictions, or dishonorable discharge from the military.
Other prohibited categories including being the subject of a domestic violence
restraining order, or being under indictment for a felony.

What these lists have in common is that they are based on public records, and
before a person can be put in one of these disqualifying categories, there must
be at least some due process. In the discussion below of federal “lists,” I do
not include the prohibited persons list, which is based on formal adjudications
with due process.

Another prohibited category is that the person “is an unlawful user or addicted
to any controlled substance.” It would obviously be improper for the FBI to put
someone’s name on the prohibited persons list merely because an FBI agent or
other law enforcement suspects that the person might be a drug user.

The Violent Gang and Terrorist Organization File

Of course the
FBI has many duties besides operating NICS, and two of those duties are
fighting gangs and terrorism. Pursuant to those duties, the FBI maintains a
“Violent Gang and Terrorist Organization File” (VGTOF).

Almost all the media echoed the assertion of Sen. Lautenberg that everyone on
the VGTOF list is a suspected terrorist. But the Rocky Mountain News (Mar. 9),
actually asked the FBI. According to the News, FBI spokesman Carl Schlaff said there’s no cause to deny someone a gun just because he or she is on the
watch list. Some people are on the list simply because the FBI wants to
interview them about someone else who may have a connection to terrorism.
“You’re innocent until proven guilty,” he said.

The No-Fly List

As the FBI acknowledges, being placed on a government list is not the same as
being a criminal. For example, in 2004, Senator Edward Kennedy complained very
publicly about being placed on another government list: the Transportation
Security Administration’s No-fly List. Kennedy has had numerous contacts over
the years with suspected Irish Republican Army terrorists, but it seems very
unlikely that Kennedy himself would hijack a plane in order to help the IRA.

Kennedy had to complain personally to TSA Secretary Tom Ridge, and the removal
process still took three weeks. Imagine how difficult it is for an ordinary,
innocent citizen to get removed from the government list of terrorist suspects.

As USA Today acknowledged in a March 14, 2005, editorial, the No-fly List is
“unquestionably flawed. Members of Congress, senior citizens and others who
shouldn’t be on it have been stopped at airport gates and, in some cases,
blocked from getting on their flights because of name mix-ups or other bad
information in the file.”3

Nevertheless, the “Million” Mom March incorrectly claimed in a March 14 press
release that all the people on one of the federal lists who purchased a gun in
2004 were “terrorists.”4 Although Senator Kennedy’s office participated in the MMM press conference, the
office apparently did not inform the MMM beforehand that some people on the
federal lists are not criminals.

In addition to the TSA’s No-Fly List and the FBI’s VGTOF, there are 10 other
federal lists. Beginning in late 2003, the federal Terrorism Screening Center (TSC)
began consolidating the federal lists. As a result, a name that is on one of the
federal lists (such as the No-Fly List) will automatically show up when a gun
background check is performed. According to the CBS Radio “Osgood File” (Mar.
9), there are 50,000 names on the FBI’s “terorist watch list.”

Because the FBI’s VGTOF list is based only on suspicion, not convictions or
arrests, it was not used for NICS checks under the Clinton administration, or
most of the Bush administration. But in February 2004, the FBI revised the NICS
procedures, so that any NICS inquiry would access the VGTOF list.

In other words, if a particular person (say, Senator Kennedy) is placed on the
No-Fly list, or any other federal list, the National Instant Check System will
automatically create a “hit” if the person attempts to buy a gun.

If there is a match between the would-be gun buyer and a name on the VGTOF
list, the gun purchase is automatically put on hold for 72 hours, to give the
FBI time to check its records more thoroughly.

Findings of the GAO Study

According to the GAO study, most matches turn out to mistakes. Initial data for
the first half of 2004 suggested there were 650 matches between gun buyers and
VGTOF names, but further inquiry; revealed only 44 genuine matches. One of the weaknesses of NICS is false matches between the name of a prohibited person and a similar name of an innocent person.

Had Senator Kennedy attempted to purchase a firearm (perhaps as a gift for one
of his bodyguards), the “match” would have been a true match, not a false match,
since Senator Kennedy really was on the No-Fly List.

The GAO studied 11 states for the period of February through June 2004. The
states were not selected at random, but were chosen because they were the only
ones known to have produced a true VGTOF “hit” during a NICS check.

GAO found 44 cases in which persons on the list had attempted to purchase a
gun. Of those, 35 transactions were allowed to proceed. (The nine denied
transactions were based on a criminal conviction or other disqualifying
category.)

In some of those 35 cases, state officials conducting the background checks
attempted to obtain additional information from FBI agents, but the agents were
non-responsive.

In one state, the state laws gave officials the discretion to delay purchases
indefinitely, and two purchases were indefinitely delayed. One of the purchases
was allowed to go forward ten months later, after the person’s name was removed
from the VGTOF list.

Long delays in FBI action—while not necessarily the norm—are doubly
inappropriate. If the person really is a terrorist, then the FBI ought to be
assigning an agent to conduct additional investigation, once it is discovered
that the person has attempted to purchase a gun. If the person is not really a
terrorist (like Senator Kennedy, and like the person who got removed from the VGTOF list after ten months), then an innocent person’s
rights are denied for a verylong time.

If the innocent
person happens to be a gun collector, then perhaps the harm from a
ten-month wait is not intolerable. On other hand, if the person needs the
gun for self-defense against a particular threat, such as a stalker, then
the wrongful denial of rights could be fatal.

GAO Recommendations

The GAO Report made two sensible recommendations. Currently, the FBI plans to
conduct audits every three years of how states which conduct the NICS checks
handle possible matches with the VGTOF list. The GAO recommended that audits
be conducted annually, and the FBI agreed to consider the issue.

For NICS checks, the FBI collects from the gun dealer the information that is
necessary to run the background check (such as name and date of birth), but
does not collect extraneous information (such as whether the person is
buying a handgun or a long gun). The GAO recommended that for possible VGTOF
matches, the FBI should receive as much information as it legally can; in
response, the Department of Justice has created revised, more detailed
guidelines on the sharing of information between state and federal
authorities, in cases of a VGTOF hit.

The GAO suggested that the FBI consider, and the FBI agreed, that the FBI
examine the feasibility of the FBI taking over all background checks which
generate a VGTOF hit. Once the hit occurred, the FBI, not state law
enforcement, would complete the NICS investigation.

The FBI has already begun fixing a third problem identified in the GAO report:
that some VGTOF hits are “not adequately visible to system users” and could
be missed by state personnel. FBI computer changes will remedy this problem
in June.

The New McCarthyism

Nowhere in the GAO report is there a recommendation for a New McCarthyism. The
subtitle of the report of “FBI could Better Manage Firearm-Related
Background Checks Involving Terrorist Watch List Records.” Yet Rep. McCarthy
cites the GAO report about better FBI procedures as proof of the need for
her bill to criminalize gun possession by people on no-fly list.

Senator Lautenberg, more cautiously, has written to Attorney General Alberto
Gonzales to ask him to evaluate the feasibility of the New McCarthyism.
(In criticizing the “Old McCarthyism,” this Issue Backgrounder refers to
excesses of the early 1950s, and not to legitimate efforts to prosecute
actual Communist spies, such as Alger Hiss and the Rosenbergs, according
to the rules of due process.)

Under the New McCarthyism, a prosecutor could send a gun-owner to federal
prison without needing to show that the person had ever committed a crime, or
had taken any steps preparatory to committing a crime, but merely that the
person’s name was on list compiled by a federal agent and the person had
owned, used, or tried to buy a gun. By federal law, anyone on the
-prohibited persons list for guns is barred not only from buying a gun, but even
from holding a gun for a moment. A name can also be placed on the no-fly list
based solely on information supplied by a foreign government—information which
may often be reliable, but sometimes may not be.

How exactly would persons on the list be informed that they will commit a
federal crime if they attempt to buy or use a gun, or if they retain ownership
of a gun they already possess? It would obviously be detrimental to law
enforcement for the government to be forced to provide notice to everyone on
one of the federal list. True terrorists would be notified that the federal
government is watching them, and they would immediately shut down their
contacts with other members of their network.

It would be a due process nightmare to send a person to prison for attempting
an illegal gun purchase, when the government had never informed the person
that she was on the list. But if gun rights can be taken away without due
process, perhaps people can also be punished for a gun possession crime
without due process.

While supporting the New McCarthyism, USA Today, unlike the vast majority of
the media, admitted that the federal lists had problems which needed to be
fixed before they became a gun prohibition list. But the problem with USA
Today’s solution is that it fails to recognize how the lists are compiled;
they were never intended to include only suspected criminals, because they
also include innocent persons who may know information about a terrorist
suspect.

Moreover, to the extent that the lists include genuine suspects, law
enforcement does not—nor should it—follow due process procedures merely to
list someone as a suspect. Such listing may be based on hearsay, on
potentially unreliable informants, or on fourth-hand rumors. Good
investigators often follow a trial that begins with weak evidence; sometimes
the investigator finds that person has done nothing wrong, and sometimes the
prosecutor finds solid evidence which can be used in a court of law. Turning
weak, investigatory-phase suspicions into a basis for deny constitutional
rights was the essence of the Old McCarthyism, and its modern incarnation.

Dangers to Other Constitutional Rights

USA Today may be over-optimistic that any government list of criminal suspects
will not include innocent people. FBI investigation of CISPES—the Committee in
Solidarity with the People of El Salvador—ended up compiling dossiers a great
many people who, notwithstanding their mistaken views on foreign policy, were
guilty of no wrongdoing. The same is true of the FBI’s prior investigation of
the Socialist Workers Party.

If the New McCarthyism had been the law in the 1970s and 1980s, then innocent
Socialists and antiwar activists would have been stripped of their
constitutional rights—without any due process or proof of wrongdoing.

If Congress takes away the Second Amendment rights of persons on a federal
suspect list, why not include the many people on the federal and state lists
of persons suspected of being involved in drugs? Although terrorism is today’s
gun control pretext, the drug war was the gun control pretext of the late
1980s and early 1990s. The next public panic over drugs would be a good
opportunity to expand the prohibited suspect list to include drug suspects.

For that matter, why not include all criminal suspects (suspected bank robbers,
suspected domestic violence perpetrators, suspected tax cheaters) on the
federal prohibited list? If the New McCarthyism establishes the legitimacy of
erasing the constitutional rights of many thousands of suspects, it would be
hard to resist the calls for removing the rights of more and more suspects.

Once the principle has been established that constitutional rights can be taken
away based on suspicion, and without due process, the principle cannot be
contained merely to the Second Amendment. Why not take away the right of
Americans on the federal lists to own a computer or use the Internet (a key
source of terrorist communications)? The Internet prohibition might be futile,
because there are so many public Internet access points, but the same
objection applies to the gun ban, because the black market in firearms is
certainly plentiful enough for a determined buyer.

If the courts uphold stripping a person’s Second Amendment rights based on
suspicion, there is no principled reason for a court to reject the stripping
of any other constitutional rights. The fact the New York Times editorial page
values the First Amendment and despises the Second Amendment is not going to
stop a federal court from ruling that the principles for deprivation of one part of the Bill of Rights can also be employed for
deprivation of other parts.

Although Senator Lautenberg is working to set the stage for the New
McCarthyism, his own bill is much more limited. Since 1986, federal law has
forbidden federal gun registration. Nevertheless, the Clinton administration
announced that it would retain NICS records for ten years—thereby compiling a
list of the large majority of American gun owners.5
(Since most gun owners buy at least one gun a decade.) In early 2004, the
Tiahart Amendment put an end to that practice, requiring that FBI records of
approved gun purchases be destroyed within 24 hours.6 The FBI may retain indefinitely the information about transactions which were
denied; retailers must still retain their own transaction records, including
information about the purchaser, for 20 years.

The Lautenberg bill would allow the FBI to retain approval records for persons
on the VGTOF list for ten years. But f it makes sense to retain records for
people on the VGTOF, which includes suspected gangsters, why not retain the
records of anyone on any gang suspect list compiled by a federal, state, or
local law enforcement agency? Why not retain records of any suspect list, for
any suspected crime?

As the last sentence of Senator Lautenberg’s March 8 press release stated,
“Lautenberg is also seeking Gonzales’ opinion on whether the Tiahart
Amendment, calling for 24 hour destruction of records of gun purchases, should be repealed.”

Thus, the current Lautenberg bill is mainly an attempt to push the Second
Amendment down the slippery slope, the opening round of a campaign to undo the
Tiahart Amendment and thereby pervert the National Instant Check System into a
national gun registration system.

4 “Legislators, Law Enforcement, Activists Warn of Immediate Threat: ‘Cop Killer’ Handguns and Sniper Rifles on Sale Now to Terrorists,” U.S. Newswire, Mar. 14, 2005. For information on the size of the group, see David B. Kopel, "Not Quite a Million Moms," National Review Online, May 15, 2001.

INDEPENDENCE INSTITUTE is a non-profit, non-partisan Colorado think tank. It is
governed by a statewide board of trustees and holds a 501(c)(3) tax exemption
from the IRS. Its public policy research focuses on economic growth, education
reform, local government effectiveness, and Constitutional rights.

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Denver, Colorado 80203 Phone 303-279-6536. (email)webmngr @ i2i.org